ENVIRONMENTAL INDEMNITY
AGREEMENT
THIS
ENVIRONMENTAL INDEMNITY AGREEMENT (the “Agreement”)
made as of February _____, 2006, by BAY STATE REALTY
HOLDINGS, INC. , a Massachusetts corporation, having an
office at 1309 South Main Street, Waterbury, CT 06706,
(“Borrower”) HOMETOWN AUTO FRAMINGHAM,
INC. , a Massachusetts corporation, having an office at
1309 South Main Street, Waterbury, CT 06706, FAMILY FORD,
INC. , a Connecticut corporation, having an office at 1200
Wolcott Street, Waterbury, CT 06705, SHAKER’S
INC ., a Connecticut corporation, having an office at 831
Straits Turnpike, Watertown, CT 06795, HOMETOWN
BRATTLEBORO, INC. , a Vermont corporation, having an
office at 1270 Putney Road, North Brattleboro, VT 05304,
SHAKER AUTO GROUP, INC ., a Connecticut
corporation, having an office at 1309 South Main Street, Waterbury,
CT 06706, COREY SHAKER , an individual, having an
address at 5 Gate Post Lane, Woodbury, CT 06798, JOSEPH
SHAKER , an individual, having an address at 130 Pine
Street, Needham, MA 02492, STEVEN SHAKER , an
individual, having an address at 593 Thomaston Road, Watertown, CT
06795, JANET SHAKER , an individual, having an
address at 228 Harwood Road, Waterbury, CT 06706, and
EDWARD SHAKER , an individual, having an address
at 873 South Street, Middlebury, CT 06762 (collectively
"Guarantor”; Borrower and Guarantor hereinafter referred to,
individually and collectively, as the context requires, as
“Indemnitors”), in favor of FORD MOTOR CREDIT
COMPANY , a Delaware corporation, having an office at 2
nd Floor Southboro Place, 352 Turnpike Road, Southboro,
Massachusetts 01772 (“Indemnitee”) and other
Indemnified Parties (defined below).
Borrower is the fee owner of that certain real
property located in Middlesex County, Massachusetts, known as 571
Worcester Road, Framingham, Massachusetts and more particularly
described in Exhibit A attached hereto (said real property,
together with any real property hereafter encumbered by the lien of
the Security Instrument (defined below), being herein collectively
referred to as the “Land”; the Land, together with all
structures, buildings and improvements now or hereafter located on
the Land, being collectively referred to as the
“Property”). Indemnitee is prepared to make a loan (the
“Loan”) to Borrower in the principal amount of
$6,035,000.00 to be evidenced by a certain promissory note of even
date herewith in the principal amount of $6,035,000.00 made by
Borrower to Indemnitee (the “Note”) and secured by,
among other things, a certain Mortgage, Assignment of Leases and
Rents, Security Agreement and Fixture Filing given by Borrower to
Indemnitee (the “Security Instrument”) which will
encumber the Property.
Indemnitee is unwilling to make the Loan unless
Indemnitors, agree, jointly and severally, to provide the
indemnification, representations, warranties, and covenants and
other matters described in this Agreement for the benefit of
Indemnified Parties.
In order to induce the Indemnitee to make the
Loan to Borrower, and in consideration of the substantial benefit
each and every Indemnitor will derive from the Loan, Borrower and
Indemnitor agree as follows:
1.
Definitions . Capitalized terms used herein and not
specifically defined herein shall have the respective meanings
ascribed to such terms in the Security Instrument. As used in this
Agreement, the following terms shall have the following
meanings:
1.1 The term “
Environmental Law ” means any present and future
federal, state and local laws, statutes, ordinances, rules,
regulations, standards, policies and other governmental directives
or requirements, as well as common law, relating to protection of
human health or the environment, including but not limited to the
Comprehensive Environmental Response, Compensation and Liability
Act and the Resource Conservation and Recovery Act, relating to
Hazardous Materials that apply to Borrower or the Property and
relate to Hazardous Materials.
1.2 The term
“ Hazardous Materials ” shall mean petroleum and
petroleum products and compounds containing them, including
gasoline, diesel fuel and oil; explosives, flammable materials;
radioactive materials; polychlorinated biphenyls
(“PCBs”) and compounds containing them; lead and
lead-based paint; asbestos or asbestos-containing materials in any
form that is or could become friable; underground or above-ground
storage tanks, whether empty or containing any substance; any
substance the presence of which on the Property is prohibited by or
requires special handling under any Environmental Law; and any
other material or substance now or in the future defined as a
“hazardous substance”, “hazardous
material”, “hazardous waste”, “toxic
substance”, “toxic pollutant”,
“contaminant”, or “pollutant” within the
meaning of any Environmental Law.
1.3 The term
“ Indemnified Parties ” means Indemnitee, any
person or entity who is or will have been involved in the
origination of the Loan, any person or entity who is or will have
been involved in the servicing of the Loan, any person or entity in
whose name the encumbrance created by the Security Instrument is or
will have been recorded, persons and entities who may hold or
acquire or will have held a full or partial interest in the Loan
(including, but not limited to, Investors (defined in the Security
Instrument) or prospective Investors in the Securities (defined in
the Security Instrument), as well as custodians, trustees and other
fiduciaries who hold or have held a full or partial interest in the
Loan for the benefit of third parties) as well as the respective
directors, officers, shareholders, partners, members, employees,
agents, servants, representatives, contractors, subcontractors,
affiliates, subsidiaries, participants, successors and assigns of
any and all of the foregoing (including but not limited to any
other person or entity who holds or acquires or will have held a
participation or other full or partial interest in the Loan or the
Property, whether during the term of the Loan or as a part of or
following a foreclosure of the Loan and including, but not limited
to, any successors by merger, consolidation or acquisition of all
or a substantial portion of Indemnitee's assets and
business).
1.4 The term
“ Legal Action ” means any claim, suit or
proceeding, whether administrative or judicial in
nature.
1.5 The term
“ Losses ” shall mean any and all claims, suits,
liabilities (including, without limitation, strict liabilities),
actions, proceedings, obligations, debts, damages, losses, costs,
expenses, fines, penalties, charges, fees, expenses, judgments,
awards, amounts paid in settlement of whatever kind or nature
(including but not limited to attorneys' fees and other costs of
defense, whether incurred at trial or on appeal).
1.6 The term
“ Release ” with respect to any Hazardous
Materials means any release, deposit, discharge, emission, leaking,
leaching, spilling, seeping, migrating, injecting, pumping,
pouring, emptying, escaping, dumping, disposing or other movement
of Hazardous Materials.
2.1
Indemnification . Indemnitors covenant and agree at their
sole cost and expense, to protect, defend, indemnify, release and
hold Indemnified Parties harmless from and against any and all
Losses imposed upon or incurred by or asserted against any
Indemnified Parties and directly or indirectly arising out of or in
any way relating to any one or more of the following: (a) any
presence of any Hazardous Materials in, on, above, or under the
Property; (b) any past, present or threatened Release of Hazardous
Materials in, on, above, under or from the Property; (c) any
activity by any Indemnitor, any person or entity affiliated with
any Indemnitor, and any tenant or other user of the Property in
connection with any actual, proposed or threatened use, treatment,
storage, holding, existence, disposition or other Release,
generation, production, manufacturing, processing, refining,
control, management, abatement, removal, handling, transfer or
transportation to or from the Property of any Hazardous Materials
at any time located in, under, on or above the Property or any
actual or proposed remediation of any Hazardous Materials at any
time located in, under, on or above the Property, whether or not
such remediation is voluntary or pursuant to court or
administrative order, including but not limited to any removal,
remedial or corrective action; (d) any past, present or threatened
non-compliance or violations of any Environmental Laws (or permits
issued pursuant to any Environmental Law) in connection with the
Property or operations thereon, including but not limited to any
failure by any Indemnitor, any person or entity affiliated with any
Indemnitor, and any tenant or other user of the Property to comply
with any order of any governmental authority in connection with any
Environmental Laws; (e) the imposition, recording or filing or the
threatened imposition, recording or filing of any Environmental
Lien encumbering the Property; (f) any acts of any Indemnitor, any
person or entity affiliated with any Indemnitor, and any tenant or
other user of the Property in (i) arranging for disposal or
treatment, or arranging with a transporter for transport for
disposal or treatment, of Hazardous Materials at any facility or
incineration vessel containing such or similar Hazardous Materials
or (ii) accepting any Hazardous Materials for transport to disposal
or treatment facilities, incineration vessels or sites from which
there is a Release, or a threatened Release of any Hazardous
Materials which causes the incurrence of costs for remediation; and
(g) any misrepresentation or inaccuracy in any representation or
warranty or material breach or failure to perform any covenants or
other obligations pursuant to this Agreement or the Security
Instrument relating to environmental matters.
2.2 Duty To
Defend and Attorneys’ and Other Fees and Expenses . Upon
written request by any Indemnified Party, Indemnitors shall defend
same (if requested by any Indemnified Party, in the name of the
Indemnified Party) by attorneys and other professionals approved by
the Indemnified Parties. Notwithstanding the foregoing, any
Indemnified Parties may, in their sole discretion, engage their own
attorneys and other professionals to defend or assist them, and, at
the option of Indemnified Parties, their attorneys shall control
the resolution of any claim or proceeding. Upon demand, Indemnitors
shall pay or, in the sole discretion of the Indemnified Parties,
reimburse, the Indemnified Parties for the payment of reasonable
fees and disbursements of attorneys, engineers, environmental
consultants, laboratories and other professionals in connection
therewith.
2.3
Subrogation . Indemnitors shall take any and all reasonable
actions, including institution of legal action against
third-parties, necessary or appropriate to obtain reimbursement,
payment or compensation from such persons responsible for the
presence of any Hazardous Materials at, in, on, under or near the
Property or otherwise obligated by law to bear the cost.
Indemnified Parties shall be and hereby are subrogated to all of
Indemnitor's rights now or hereafter in such claims.
2.4
Interest . Any amounts payable to any Indemnified Parties
under this Agreement shall become immediately due and payable on
demand and, if not paid within thirty (30) days of such demand
therefor, shall bear interest at a per annum rate equal to the
lesser of (a) five percent (5%) plus the Applicable Interest Rate
(as defined in the Note) or (b) the maximum interest rate which
Borrower or any other Indemnitor may by law pay or Indemnified
Parties may charge and collect, from the date payment was
due.
2.5
Survival . The obligations and liabilities of Indemnitors
under this Agreement shall fully survive indefinitely
notwithstanding any termination, satisfaction, assignment, entry of
a judgment of foreclosure, exercise of any power of sale, or
delivery of a deed in lieu of foreclosure of the Security
Instrument; provided, however, that in the event any Indemnified
Party accepts a deed in lieu of foreclosure or otherwise obtains
fee title to the Property, then Indemnitor shall not be obligated
to indemnify such Inde
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